The High Court yesterday refused to grant an order that would compel the ministry of home affairs to grant emergency travel documents to infant twins born to fathers Phillip Lühl and Guillermo Delgado via surrogacy.
The documents would have enabled them to travel from South Africa to Namibia, accompanied by Lühl. Handing down the order, Judge Thomas Masuku said there would be judicial over-reach if the court were to grant the orders sought by Lühl in his urgent application filed in March. “The effect of this application is that the applicant is moving the court to usurp the functions of the minister and compel him to issue emergency travel documents to the children. This court has not been imbued with such powers,” explained Masuku.
The court noted that there was no decision by the minister on which the court could review, as no application was brought before him. “If he made a decision on that substantive application, that would have been the decision that the applicant – if it went against him, or was in any manner unsatisfactory – would have been entitled at law to bring for review to the court.
This has not happened,” noted Masuku.
Lühl sued Frans Kapofi in his capacity as minister of home affairs for refusing to grant emergency travel documents to infants Paula and Maya Delgado Lühl, born on 13 March 2021, in South Africa.
The fathers, through their lawyer Uno Katjipuka-Sibolile, proposed to Kapofi to issue their daughters with emergency travel documents to avoid them from being stuck in South Africa pending judgement in the first case, in which Lühl is suing the minister to have his and Delgado’s two-year-old son, Yona, declared a Namibian citizen by descent.
In turn, the couple promised not to use the emergency travel documents in support of any claim for Namibian citizenship of the twins. The decision, in this case, is expected on 4 August.
In court documents, Kapofi claims he must firstly be satisfied that Paula and Maya are children of a Namibian parent before issuing certificates of citizenship by descent and/or travel documents.
He further said the parents should have applied for citizenship for the children and allowed him the opportunity to make his decision.
However, there is currently no application to that effect; thus, there is no case to be considered by the court, as he has not made any decision in both cases.
Yesterday, after the court pronounced itself, Delgado, who was present for the ruling, said their case has become overly sensitive and he believes the people are being careful.
“If you think about it, we are not asking for something outrageous – it is something humanitarian. The fact that it cannot be decided on and the judiciary said ‘no’ – it does not make sense to me,” said Delgado.
Adding the best option will be to appeal the matter in the Supreme court but they will wait for their lawyers to study the reasons for the orders contained in the full judgement once it is available.